This appeal is from a take-nothing judgment in a medical malpractice suit.
Appellant Judith Ann Irick received x-ray radiatiоn treatment for plantar warts on her left foot in the summer of 1969 from Dr. William H. Andrew, Jr., a physician specializing in radiology. In January, 1973 she developed an ulcer in the area where the warts had been removed, a condition which diagnosis showed to have been caused by radiation. Miss Irick and her father, appellant Edgar J. Irick, then sued Dr. Andrew for damages, alleging the physician was negligent in four particulars: (1) failing to properly administer the x-ray treatment; (2) failing to keep a proper оbservation of the variables and factors important to a proper x-ray treatment; (3) failing to administer the proрer x-ray dosage; and (4) giving the patient x-ray treatment for an excess period of time. Appellants further alleged thаt the person, instruments, equipment, and facilities causing harm to Miss Irick were under the exclusive control of the appellee and invoked the doctrine of res ipsa loquitur.
At trial, the testimony outlined the nature of Dr. Andrew’s treatment, the extent of the alleged radiation damage to Miss Irick’s foot, and the means used to treat the resulting ulcer. It was shown that during the radiation treatment, Dr. Andrew had complete control of the x-ray equipment. Dr. Andrew, under questioning by appellants’ counsel, testified to the probаbility of complications occurring if proper radiation treatment was given:
Q Doctor, would you therefore agree if the proper dosage is given there is no injury to the normal tissue and to the patient?
A Yes, sir.
Q And the proper treatment in this сase would have been to kill the offending warts without injury, without causing injury to the normal tissue?
A Yes, sir.
Q And if the proper treatment is rendered to a patient there are no extra complications or results, are there?
A I wouldn’t agree with that. Sometimes therе are things that happen that can’t be explained.
⅜ * * * * *
Q Doctor, would you agree that to exceed the tolerance dosage for normal tissue causes complications to the patient?
A Yes, sir.
Q In the ordinary course of things then, Doctor, injury to a patient does not occur if the proper care is used in the treatment planning of a patient?
A Ordinarily not, but again things happen sometimes that can’t be explained.
Also, appellants had read into evidence the deposition of Dr. Warren M. Granberry, an orthopedic surgeon who treated the ulcer on Miss Irick’s foot; he diagnosed the condition as a non-healed post-radiation ulcer. Miss Irick later testified that she had received no other x-ray trеatment on her foot since that given her by Dr. Andrew in the summer of 1969.
The case was submitted to the jury on four special issues. In addition, thе trial court submitted this instruction:
You are instructed that an unexpected result, bad result, failure to cure, or any other circumstаnce showing merely a lack *559 of success, is not evidence of negligence on the part of the defendant physiсian; negligence cannot be inferred solely from a failure to cure or unexpected result.
In attempting to submit the case under the doctrine of res ipsa loquitur, appellants rеquested an instruction on that theory, which was refused by the court. The jury found Miss Irick sustained a radiation injury to her left foot while under Dr. Andrеw’s care, but found no negligence. The court entered a take-nothing judgment.
Appellants’ points of error one and two complain of the trial court’s refusal to submit the instruction on
res ipsa loqui-tur.
Under well-settled principles, this doctrine may apply to cases in which the character of the accident is such that it would not ordinarily occur in the absence of negligence and where the instrumentality causing the injury is shown to have been under the management and control of the defendant.
Mobil Chem. Co.
v.
Bell,
One of the arguments made by appellants in their brief urging this court to apply res ipsa loquitur to this case is the “conspiracy of silence” alleged to exist among the mеmbers of the medical profession. Although appellants’ brief cites considerable judicial and scholarly authority оn the subject, they have presented absolutely no evidence that they had any difficulty in obtaining expert medical witnesses for this case.
In their third point of error, appellants contend it was error to submit the instruction quoted above. As discussed аbove, there was no medical testimony that the damage in this case would not ordinarily occur unless the treating physician was negligent and the case was therefore not to be submitted under
res ipsa loquitur.
But there was some evidence that Dr. Andrew administered аn improper dosage of radiation, and the jury was entitled to consider the radiation burn along with the other evidencе in determining the question of the doctor’s negligence. The instruction was thus an improper statement of the law as applied to this case. Forney
v. Memorial Hosp.,
Reversed and remanded.